The same three-judge panel[1] that struck down the General Assembly’s attempt to merge the state Board of Elections and state Ethics Commission is deliberating this afternoon whether to temporarily halt a similar effort.

Gov. Roy Cooper filed a lawsuit[2] earlier this week, as well as motions for a temporary restraining order and a preliminary injunction to halt the merge pending an outcome in the case.

If they don’t rule in favor of Cooper, on Monday the state Board of Elections and state Ethics Commission will be abolished and a new 8-member board combining the agencies’ functions will be established.

Two of Cooper’s attorneys, Jim Phillips and Daniel Smith of Greensboro, argued at the Friday hearing that Senate Bill 68[3] violates the Separation of Powers clause, interferes with the Governor’s ability to faithfully execute laws and violates the non-delegation doctrine.

Phillips said SB 68 was worse than SB 4[4] — the law with similar provisions already struck down[5] — and substantively achieves the same goal.

Unlike SB 4, Cooper can appoint all eight members of the new board from a list of names compiled by the majority parties. The board will still be evenly split between Democrats and Republicans.

One of the problems, Phillips said, is that to take any action, there must be a 5-member quorum, which won’t happen if members vote on party lines. If there isn’t a quorum, the board will not act.

This is particularly of note, he said, with regards to the executive director of the board. The General Assembly will appoint the position initially, which will last through 2019, and then the board will appoint the next person.

SB 68 is written in such a way that if the board can’t agree on a new director, the current director continues to serve — which could go on indefinitely. Cooper has no say in hiring the director or removing someone in the position, unless there is malfeasance.

Additionally, Phillips said, every presidential election year, the chair of the board will be a Republican, according to the law.

He conceded that the General Assembly can change state agencies to an extent but said it had to be done in such a way so as not to interfere with the Governor’s constitutional duties.

Noah Huffstetler III, a Raleigh attorney representing Senate Pro Tem Phil Berger and House Speaker Tim Moore, said that the General Assembly made good faith and effective efforts to address each point in SB 68 that could be argued as unconstitutional.

He said that the Governor’s powers per SB 68 are on par with his current authority — he can appoint all eight members of the new board and remove them.

Huffstetler said a temporary restraining order to prevent a law that had yet to go into effect was an extraordinary measure that could not be taken lightly. Fear and speculation that the new board will be dysfunctional, he added, were not sufficient to support a facial constitutional challenge.

You can read the defendants’ full response in opposition to the restraining order here[6].

The judges took both arguments under advisement and will make their decision later.